Tucker and Lamboll - [2009] FMCAfam 32

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TUCKER & LAMBOLL

[2009] FMCAfam 32

FAMILY LAW – Parenting orders – mother relocating so that extra time with father impractical – father proposing children live with him if mother relocates – effect on children if change in primary carer.

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAA

Applicant:

MS TUCKER

Respondent:

MR LAMBOLL

File Number:

MLC 11892 of 2007

Judgment of:

Phipps FM

Hearing dates:

15 & 16 October 2008

Date of Last Submission:

16 October 2008

Delivered at:

Dandenong

Delivered on:

21 January 2009

REPRESENTATION

Counsel for the Applicant:

Ms Stewart

Solicitors for the Applicant:

Richard Calley Family Lawyers

Counsel for the Respondent:

Mr Lethlean

Solicitors for the Respondent:

Bayside Solicitors

Counsel for the Independent Children’s Lawyer:

Ms Dowler

Solicitors for the Independent Children’s Lawyer:

Taylor Splatt & Partners

ORDERS

That the mother and father have equal shared parental responsibility for the children [X] born in 1999 and [Y] born in 2008 (“the children”).
That the children live with the father as follows:
A.Pending the mother’s move to the [C] area:
(i)During school term each alternate weekend from 5.30pm Friday to 5.30pm Sunday, each alternate Wednesday from 5.30pm to 7.30pm and each other alternate Wednesday from 5.30pm to 8.30am Thursday;
(ii)For half the Christmas school holiday period at times to be agreed between the mother and father, and failing agreement as follows:
a)From 6.00pm the day the 2009 school year concludes to 4.00pm Christmas Day 2009 and each alternate year thereafter;
b)From 4.00pm Christmas Day 2010 to 30 December 2010 and each alternate year thereafter;
c)From 6.00pm 31 December 2009 to 4.00pm 5 January 2010 and each alternate year thereafter;
d)From 6.00pm 6 January 2009 to 6.00pm 12 January 2009 and each alternate year thereafter;
e)From 6.00pm 13 January 2009 to 6.00pm 19 January 2010 and each alternate year thereafter;
f)From 6.00pm 20 January 2009 to 6.00pm 25 January 2009 and each alternate year thereafter;
(iii)From 6.00pm Friday immediately prior to Melbourne Cup Day to 6.00pm on Melbourne Cup Day each year;
(iv)From 5.00pm on the Saturday immediately prior to Father’s Day to 5.00pm on Father’s Day should it fall when the children are in the mother’s care;
(v)Such further and other times as the parties mutually agree upon.
B.Upon the mother moving to the [C] area:
(i)During school term on each alternate weekend from 6.00pm Friday to 6.00pm Sunday and in the event Monday is a non school day 6.00pm Monday;
(ii)During the scheduled school term holidays as is mutually agreed between the mother and father and failing agreement:
a)From 6.00pm the day the school term concludes to 6.00pm Sunday of the middle weekend of the school term holidays in 2009 and each alternate year thereafter;
b)From 6.00pm Saturday of the middle weekend of the school term holidays to 6.00pm Sunday immediately prior to the recommencement of the school term in 2010 and each alternate year thereafter;
(iii)For half the Christmas school holiday period at times to be agreed between the mother and father, and failing agreement as follows:
a)From 6.00pm the day the 2009 school year concludes to 4.00pm Christmas Day 2009 and each alternate year thereafter;
b)From 4.00pm Christmas Day 2010 to 30 December 2010 and each alternate year thereafter;
c)From 6.00pm 31 December 2009 to 4.00pm 5 January 2010 and each alternate year thereafter;
d)From 6.00pm 6 January 2009 to 6.00pm 12 January 2009 and each alternate year thereafter;
e)From 6.00pm 13 January 2010 to 6.00pm 19 January 2010 and each alternate year thereafter;
f)From 6.00pm 20 January 2009 to 6.00pm 25 January 2009 and each alternate year thereafter;
(iv)From 6.00pm Friday immediately prior to Melbourne Cup Day to 6.00pm on Melbourne Cup Day each year;
(v)From 5.00pm on the Friday immediately prior to Father’s Day to 5.00pm on Father’s day should it fall when the children are in the mother’s care;
(vi)Such further and other times as the parties mutually agree upon.
That the children live with the mother at all other times.
That the time the children spend with the father pursuant to paragraph 2 herein is to be suspended from 5.00pm on the Friday immediately prior to Mother’s Day to 5.00pm on Mother’s Day.
That orders 2(A)(i) and 2(B)(i) herein be suspended during all school term and Christmas school holiday periods and recommence on the first weekend after the resumption of each school term.
That pending the mother’s move to the [C] area the father collect and deliver the children at the commencement and conclusion of his care periods from the corner of [omitted] (“the corner”) or such other place as may be mutually agreed between the parties save and except that he deliver the children each alternate Thursday to [X]’s school at 8.30am and to the corner at 9.00am in the case of [Y].
That upon the mother moving to the [C] area;
A.The father collect the children at the commencement of his care periods pursuant to order 2(B)(i) herein from the [omitted] and at the conclusion of his care periods deliver the children to the [omitted] Supermarket in [C] or such other place as may be mutually agreed between the parties;
B.The father collect and deliver the children at the commencement and conclusion of his care periods pursuant to orders 2(A)(ii), 2(A)(iii), 2(A)(iv), 2(A)(v), 2(B)(ii), 2(B)(iii), 2(B)(iv), 2(B)(v) and 2(B)(vi) from the foyer of the [omitted] Supermarket in [C] or such other place as may be mutually agreed between the parties.
That the mother and father be permitted reasonable telephone communication with the children when the children are in the care of the other parent.
That the mother be permitted to enrol [X] at [C] Primary School and [Y] at the kindergarten in [C] for the commencement of the 2009 school year.
That the mother provide the father with fourteen days notice of her move to the [C] area and inform the father of her new residential address.
That the mother and father inform the other within fourteen days of any changes to their residential address.
That the father do all such acts and things and sign all such documents as may be necessary to change the surname of the children from Lamboll to Tucker-Lamboll inclusive but not limited to changing the children’s name with the Registry of Births, Deaths and Marriages, the children’s school and or day care facilities, medical and health records.
That the mother is restrained from moving the children’s residence a distance from [L] Post Office that is further from the distance between the [L] Post Office and the furthest point in the town of [C].
That the mother give the father 28 days notice of her intention to move the children’s residence from [C] to a place allowed under paragraph 13.

NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules2001 to reflect a change of date. In order 2B(iii)(e) the words “13 January 2009” have been deleted and replaced with the words “13 January 2010”.

IT IS NOTED that publication of this judgment under the pseudonym Tucker & Lamboll is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 11892 of 2007

MS TUCKER

Applicant

And

MR LAMBOLL

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in this case have two children [X] born in 1999 and [Y] born in 2008. They disagree on whether they should live with the mother on Phillip Island or the father at [L].
The parties commenced a relationship in 1997 and commenced living together in July 1999 in a unit built in the father’s mother's backyard. The mother alleges the cohabitation was punctuated with frequent periods of separation, something the father denies.
The parties moved to rented accommodation in [F] and were living there when they separated in November 2005. The mother says the separation occurred when she discovered that the father was accessing child pornography on the Internet. The father says the separation came about because of the mothers wish to be married.
Whatever the reason for separation, those issues now have no relevance. The father's use of pornography received some attention during the hearing, but as the issues now stand at the end of the hearing, it has no relevance.
After the separation the mother purchased a house in [F] where she now lives with her children. The father placed a caveat on the property and filed, but did not serve, proceedings under the de facto property legislation of the State of Victoria. These proceedings were resolved during the course of the hearing and I was informed that it was agreed that the husband would withdraw the caveat and discontinue his proceedings. Again, as the issues are now, they have no relevance, other than as background.
The mother commenced a new relationship with Mr T in June 2006 and intended to relocate to the [R] area and purchase a house with him. However, that relationship ended in January 2008, although they remain on good terms.
After the separation the father purchased a house at [L] so as to be near the children. That is where he currently lives, although he has the option of staying at his mother's house closer to Melbourne.
When the hearing of the case commenced both parties proposed that the children should remain living with their mother. Currently, they live with her in [F] and spend alternate weekends with their father and time for an evening meal during the intermediate week.
The mother wishes to relocate to [C] on Phillip Island. When the hearing started, the father’s proposal was to oppose the mother's application to relocate the children's residence and to apply for increased time on alternate weekends. His proposal did not include that the children should live with him.
Ms Thomas, the family reporter writer recommended that the children remain residing with their mother in the [F] area and have increased time with their father. The family report writer did not consider, because it was not proposed, an option where the children might be living with their father.
The mother’s affidavits put forward her case for moving to [C]. The mother suffers from Type 1 Diabetes. A consequence is that she is now blind in one eye and has restricted vision in the other. She can no longer drive and so depends on others or public transport to transport her and the children.
She owns her current residence in [F]. Her evidence is that she will have to sell it because she can no longer afford to keep it. Part of the reason is that she has to pay the legal costs of these proceedings.
Apart from the need to sell the current residence, she does not like living in the area she is in and does not like the school the children are attending. She gave evidence of arguments and physical fights between parents at the school, and violence and drug dealing in the area where she is living.
She gave evidence that she had carefully researched places where she could live. She has decided on [C] because she can rent a house for an amount she can afford and be within walking distance of all the places she and the children need to attend. These include a school, shops, and sporting and other activities for the children.
Her father lives on Phillip Island, although not at [C]. She was adopted when a child and has met and established a relationship with her birth mother. The birth mother lives at Inverloch, less than an hour’s drive away. The mother says she will feel safe living at [C], unlike how she feels about living at [F].
The hearing of the case commenced, and the mother's cross-examination proceeded on the basis that the children would remain living with their mother. The issues were whether that would be at [F] or [C] and how much time they would spend with their father. In the course of cross-examination I asked the mother what she would do if the result of the case was that she was not permitted to move the children's residence away from [F] to [C]. Her reply was that she would move to [C] anyway and the father would have to care for the children and she would see them as she could.
If the mother was to be believed it meant that the effective proposals for the court to consider were either the children living in [C] with the mother or living at [L] with their father.
The case continued for some time until the parties agreed that it should be adjourned and a further family report obtained.
Prior to the hearing recommencing the father amended his response so that his proposal now is that the children live with him and spend time with their mother. The second family report continues to recommend that the children should live with their mother in the [F] area so that they could spend additional time with their father. The second report makes the point that the mother might not find [C] as congenial as she anticipates.
This is a relocation case to the extent that if the mother lives in [C] with the children the father’s time with them will be restricted to weekends Friday night to Sunday night and school holidays.
The principles which apply to relocation cases require the court to consider each party's proposal. A parent proposing to relocate does not have to show compelling reasons for doing so. The best interests of the children remain the paramount consideration. The court must bear in mind a person's entitlement to decide where they wish to live.
The mother’s proposal is that the children live with her in [C] and spend alternate weekends Friday night to Sunday night with their father and a little more than half the school holidays with their father.
The father's proposal is that if the mother continues to live within the [F] area, the children live with their mother and spend five nights in each fortnight with him. If the mother does relocate then the children live with him and spend two weekends out of three with the mother from Friday night to Sunday night and all of the third term school holidays.
The Independent Children’s Lawyer’s proposal is basically the same as the mother’s but proposes alternate weekends ending Monday morning rather then Sunday night. While the proposal has the advantage of extra time with the father, the travel distance makes Monday morning impractical.

The mother's proposal to move

An issue is whether the mother's proposal is truly her only one. The father’s evidence was given partly before and partly after the adjournment, that is, after the second family report had been prepared and he had amended his proposal to one that the children live with him. In the second part of his evidence the father said that he believed that the mother was bluffing when she said that she would move to [C] whether or not she could take the children with her.
The report writer posed the question of what might happen if the mother found that [C] did not work out in the way she anticipated. That might result in her moving away from [C] not long after she had moved.
I accept that the mother means what she says, she will move to [C] with or without the children. She gives logical reasons for wanting to move. She has a serious illness, Type 1 Diabetes. Her sight is severely restricted so that she cannot drive. She feels unsafe living in [F]. The father disputes what she says, but what is important is the mother's perception. Her perception is not the perception of an able-bodied person. She has restricted sight, apart from the other disabilities her illness might give her from time to time. She depends on public transport, a difficulty in itself when moving around with young children, but more so in the mother's case. She cannot insulate herself from unpleasant events which may have occurred on streets, including at bus stops. One of the incidents she described in her evidence occurred at a bus stop. Her disability makes it that much more difficult to deal with these incidents.
She produced a map of [C] marked with the various places she will need to go. If she can obtain a house where she believes she can she will be able to carry on her daily life, and the children's lives, by walking. The evidence shows that she can rent a house in a suitable area for a price she can afford.
She says that her inquiries make her believe that [C] will be a pleasant place to live, largely free of the unpleasant aspects of [F] that make her feel unsafe. [C] is a relatively small town on an island. The mother's assessment is not improbable.
The mother may find that [C] is not as she believes it will be. If that happens and she moves then clearly that is a changed circumstance which might require reassessment of parenting orders.
Consequently, the proposals I must consider are as put forward by each party. An option which has the mother living in or near [F] is not available.
The presumption of equal shared parental responsibility contained in s.61DA of the Family Law Act1975 (Cth) applies in this case. Each party accepts this and none of the grounds for rebuttal apply.
The consequence which follows from this, that is the requirement in s.65DAA that the court must consider equal time or substantial and significant time has no relevance in this case. This is because equal time is obviously not possible and each party's proposal offers what amounts to the best that can be done in the circumstances in terms of substantial and significant time.
That means that the competing proposals must be assessed in terms of the best interests of the children applying the primary considerations of additional considerations contained in s.60CC which are relevant to this case.

The benefit of a meaningful relationship

Both children had a very good relationship with each parent. Each parent acknowledges this and the family reports demonstrate the same. Each party's proposal contains provision for the children's time with the other parent which is the best that can be done in the circumstances. Whichever proposal is adopted the children will maintain a meaningful relationship with each parent.

Children's wishes and relationship with each parent and others

These two considerations can be addressed together. The older child has a close relationship with her mother. The father acknowledges this to the extent that he said in the first part of his evidence that she would be devastated if separated from her mother. In the second part of his evidence, after he had amended his proposal to one that the children live with him, he said he thought that she would adjust. The family report writer observed the close relationship between mother and daughter. She considered that she might rebel if forced to live with her father. Clearly, the older child wishes to live with her mother.
The younger child, the boy has a closer relationship with his father. His principal carer in his life has been his mother and his primary attachment is to his mother. The children have a healthy sibling relationship.
These two considerations, children's wishes and relationships points towards the mother's proposal being the one which is in the best interests of the children.

Willingness to facilitate the relationship with the other parent

The mother’s determination to move to [C] with the children means that if that is what happens the father’s time with the children must be reduced. The family report recommends an increase in the father's time with the children and so recommends against the mother and the children moving. To this extent, the mother's proposal does not facilitate the relationship with the other parent. On the other hand, the proposal involves her travelling across and back on the ferry between [C] and Stony Point every second Friday. She recognizes and supports the children's need for a meaningful relationship with their father. To the extent that it is consistent with her desire to move to [C], her proposal does promote the father's relationship with the children.

The likely effect of change

If the father’s proposal is accepted the children will be separated for much of the time from their primary carer, and so will have to adjust. The effect on the older child, in particular is likely to be significant. The father said he believed she would adjust, but if she did not, there may be a lasting effect. If she rebels about living with her father, something Ms Thomas says may have happen, the effect on her will be very significant. It may affect her relationship with her father if she does not adjust, she may resent being separated from her mother. If she resents her father to the extent that she does not want to see him, that would be very damaging for her and very much against the purpose and objects of parenting orders set out in s.60B of the Family Law Act1975 (Cth).
Ms Thomas, in her second report looked in some detail at the disadvantages of a relocation. It reduces the children's time with their father. A move in itself is unsettling for children, their mother will have to establish a social network in the [C] area, and if it does not work out and she moves again with the children, there are undesirable consequences for them.
The older child has had difficulties at school. She is very isolated. The father believes she will be better remaining at the current school. The mother believes she will do better away from the current school. Some of the unpleasant instances which the mother described happened at the current school. The best that can be said is that the older child may or may not be better at a new school.
The mother's proposal means that the children will be removed from their current circumstances including her current school. The mother believes this will help them but that cannot be said with certainty.
The significant part of this consideration is the separation of the children, and in particular the older child, from their mother and the detrimental effect that is likely to have on them.

Difficulty and expense in spending time

The difficulty and expense to each parent, whichever proposal is accepted, is clear because of the distance between the party’s homes. The difficulties exist no matter which proposal is accepted.

The capacity of each parent to provide for the children's needs

The father works full time as a [omitted] for one of the major television stations. This involves varying work hours and occasionally weekend work. The difficulties he will have in caring for the children are no different to any other working single parent, but they exist He will have the assistance of his mother and child care and before and after school care facilities.
The mother is not working and so can give her full time to caring for the children.
This consideration points towards the mother's proposal being in the best interest of the children.

Conclusion

Ms Thomas has assessed that the best result for the children would be if the parents remain living in close proximity. For the reasons I have already described that is not going to occur. The children's best interests have to be assessed on the basis that their mother will be living in [C]. Consideration of all of the factors leads to the conclusion that the best interests of the children are not served by removing them from the care of their mother
The proposal of the Independent Children's Lawyer best achieves the result of the children living with their mother and spending as much time as is consistent with that result and practical given the circumstances of the distance between the parties residences and the father's work arrangements.

Change of name

The mother applies to change the children’s surname. The issue received little attention during the hearing. The father does not object to a hyphenated surname. The Independent Children's Lawyer proposes Tucker–Lamboll. This identifies the children with both parents and is a satisfactory result in the circumstances.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Jan Smith

Date: 20 January 2009